Posts made in December, 2009

Under the old Conditional Fee Agreement Regulations 2000 a solicitor had a duty, before entering into a CFA, to inform the client “whether the legal representative considers that the client’s risk of incurring liability for costs in respect of the proceedings to which agreement relates is insured against under an existing contract of insurance” (Regulation 4(2)(c)). Failure to comply would generally render the CFA unenforceable (see Myatt v National Coal Board [2006] EWCA Civ 1017). The CFA Regulations have now been revoked. Does that mean that a powerful weapon has been lost to defendants and that sloppy claimant solicitors can rest easy? Not necessarily. A fascinating decision has recently emerged from the Senior Courts Costs Office that suggests this issue may still be a live one. The decision in Thomas v Butler and Other T/A Worthingtons Solicitors [2009] EWHC 90153 (Costs) concerned a solicitor/own client assessment but there is no reason to suppose the decision would have been any different if this had been an inter partes assessment. The key issue that arose was whether the solicitors had complied with their duties under the Solicitors Costs Information and Client Care Code 1999 that was in force at the time (and remained in force until 30 June 2007) which states: “4. Advance costs information – general The overall costs (a) The solicitor should give the client the best information possible about the likely overall costs, including a breakdown between fees, VAT and disbursements. …. Client’s ability to pay (j) The solicitor should discuss with the client how and when any costs are met, and consider: (i) whether the client may be eligible and should apply for legal aid (including advice and assistance); (ii) whether the client’s liability for their own costs may be covered by insurance; (iii) whether the client’s liability for another party’s costs may be covered by pre-purchased insurance and, if not, whether it would be advisable for the client’s liability for another party’s costs to be covered by after the event insurance (including in every case where a conditional fee or contingency fee arrangement is proposed); and …” Having considered the evidence presented, Master Campbell concluded:...

I wouldn’t usually post something giving tips on how lawyers can increase the legal costs they can recover but I thought I would make an exception in this case. (If you receive the Legal Costs Blog via email you made need to adjust your security settings to view the video.) Is it just me or was this all blindingly obvious? I did like the music at the beginning and end...

I recently received a telephone message asking if my firm did pro bono work. (The answer is “no”, by the way.) But this did cause me to pause for thought as it coincided with a report in the Law Society Gazette that: “The value of pro bono work done annually by lawyers has soared to more than £400m. … That figure does not include the contribution made by in-house solicitors or other legal professionals such as barristers or legal executives”. You wouldn’t telephone a plumber and ask if he did pro bono plumbing. I doubt you would do this regardless of how poor you were or how bad the leak was. So why are lawyers viewed differently? Why are some lawyers prepared to give so much of their time for free? Undoubtedly, a lot of pro bono work is undertaken by lawyers working for Magic Circle firms or leading barristers who earn more money than they can spend and feel the need to “give something back”. However, this is not the whole answer and there are clearly those on far more modest incomes who also give their time freely. Well done you. There are probably a number of legal aid lawyers out there who feel they would be better off switching entirely to pro bono work. The pay would be about the same but there would be far less forms to complete. If there are any costs draftsmen out there who do pro bono work, let us...

As the tension mounts as to what might be going through the mind of Lord Justice Jackson as he prepares his final report on his civil costs review, might he be influenced by the litigation landscape north of the boarder? The recently published Report of the Scottish Civil Courts Review states that the majority of damages claims in Scotland are pursued on the basis of "speculative fee arrangements" (no win, no fee agreements). This is despite the fact that: "Unlike in England and Wales, success fees and ‘after the event’ insurance premiums are not recoverable and will have to be paid by a successful [claimant] from the damages recovered, unless they are waived or absorbed by the [claimant’s] solicitor". Jackson LJ’s Preliminary Report raises a number of concerns about the English system of recoverable success fees and ATE premiums. If non-recovery seems to work in Scotland, why not here? And while Jackson LJ may be looking north of the boarder, they are looking back. The Scottish report concludes: "We have given careful consideration to the use made of speculative fee arrangements in this country and the experience of conditional fee agreements in England and Wales. We consider that it would be premature to recommend any changes to speculative fee agreements as they are presently constituted in Scotland. The civil costs review in England and Wales chaired by Lord Justice Jackson should be monitored for its research findings and its conclusions" Deep-fried Mars Bar anyone? Click image to enlarge: ...

The Law Gazette has reported the case of a Norfolk solicitor who charged clients based on the weight of their files, “by weighing the files in his hand”, and was struck off after a hearing before the Solicitors Disciplinary Tribunal. You mean there’s another way to cost a...